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December 07, 2022

Merrill v. Milligan and Merrill v. Caster


Does Alabama’s 2021 Redistricting Plan for Its Seven Congressional Seats Violate the Voting Rights Act?


 In the wake of the 2020 census, Alabama enacted a map for its seven congressional districts. The map included just one district where racial minorities constituted a majority, even though black residents constitute 27 percent of Alabama’s population, and even though the state could have drawn a second majority-minority district using traditional districting criteria. Plaintiffs sued, arguing that the districting scheme violated Section 2 of the Voting Rights Act.

 Merrill v. Milligan and Merrill v. Caster
Docket No
.21-1086 and 21-1087

 Argument Date: October 4, 2022 From: The Northern District of Alabama

by Steven D.Schwinn
University of Illinois Chicago School of Law, Chicago, IL


 Section 2 of the Voting Rights Act (VRA) prohibits a state from using voting practices and procedures that “result[] in a denial or abridgment of the right…to vote on account of race or color.” Under the VRA, this means that “political processes” must be “equally open” such that racial minorities do not have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The district courts applied Section 2, along with the Court’s well-established framework for judging Section 2 claims, and ruled for the plaintiffs.


 Did the lower courts err in ruling that Alabama’s districting plan violated Section 2 of the VRA?


 On November 4, 2021, Alabama adopted a map of the state’s seven congressional districts based on the 2020 census. The map, also called “HB 1” or “the Plan,” included just one district with a majority of black of voters (a “majority-minority district”), even though black Alabamians constitute 27 percent of the state’s voting-age population. That district, District 7, includes a high concentration of black voters in a portion of the state’s Black Belt region. (The Black Belt region is an area of the state named for its fertile black soil. The region contains a large portion of the state’s black population. It encompasses the two “anchor” cities of Montgomery and Mobile.) This high concentration allows black voters in District 7 to elect a candidate of their choice. But at the same time, HB 1 divides, or “cracks,” the rest of the Black Belt region across three other districts with a majority of white voters. Given the racial politics and voting patterns in Alabama, this prevents black voters from electing a candidate of their choice in those districts and in any other districts in the state. 

HB 1’s single majority-black congressional district is nothing new. District 7 was the state’s only majority-minority district when the state adopted maps after the 2000 and 2010 censuses, too. (Before that, after the 1970 and 1980 censuses, Alabama adopted maps that resulted in all-white congressional delegations. Then, in response to a VRA claim after the 1990 census, a federal court ordered a map that created District 7 as the state’s sole majority-minority district. As a result of the court’s map, Alabama elected its first black congressmember since Reconstruction.) In every election since District 7 became a majority-minority district, black voters have elected a candidate of their choice with increasing majorities.

Plaintiffs challenged HB 1 in three different cases in federal court. As part of their arguments, the plaintiffs offered 11 illustrative maps that created a second majority-minority district in the state while also comporting with Alabama’s districting guidelines at least as well as HB 1. After a thorough evidentiary hearing, a three-judge district court issued a lengthy and comprehensive ruling that Alabama’s map likely violated Section 2 of the VRA—indeed, that the question was not even “a close one.” (The ruling covered two of the cases, and the judge in the third case adopted it. The court applied the Section 2 framework, described below.) The court issued a preliminary injunction and ordered Alabama to draw a map that remedied the likely Section 2 violation. The court did not require the state to adopt any of the plaintiffs’ illustrative maps.

On February 22, 2022, the Supreme Court stayed the district court’s injunction and noted probable jurisdiction.

Case Analysis

Section 2 of the VRA originally prohibited government voting practices or procedures that “deny or abridge the right of any citizen of the United States to vote on account of race or color.” In 1980, the Court interpreted Section 2 to prohibit only “purposefully discriminatory” government actions. City of Mobile v. Bolden, 446 U.S. 55 (1980). This interpretation required plaintiffs to demonstrate government intent to discriminate—a high bar, given that state and local governments had long figured out how to conceal intentional discrimination and nevertheless achieve discriminatory results.

In response to the Court’s interpretation, Congress amended Section 2 to prohibit government voting practices that produced a discriminatory result. Section 2 now prohibits government voting practices and procedures that “result[] in a denial or abridgment of the right…to vote on account of race or color.” 52 U.S.C. § 10301(a). Moreover, Congress specified how to determine when a discriminatory result violated Section 2. Under the amendment, a voting practice violates Section 2 “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in [a] State or political subdivision are not equally open to participation by members of a class of citizens protected by” Section 2, “in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b). But Congress also specified that while “the extent to which members of a protected class have been elected to office” is “one circumstance which may be considered,” Section 2 does not “establish[] a right to” proportional representation by race.

The Court construed the amended Section 2 and adopted a framework for its application in districting cases in Thornburg v. Gingles, 478 U.S. 30 (1986). The Court ruled that a Section 2 plaintiff must first establish three “preconditions” for a Section 2 violation. First, “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.” Second, “the minority group must be able to show that it is politically cohesive.” Third, “the minority [group] must be able to demonstrate that the white majority votes sufficiently as a bloc” to allow it “usually to defeat the minority’s preferred candidate.”

The Court held that if a plaintiff satisfies the three Gingles preconditions, then a court must determine whether, in “the totality of the circumstances,” a districting scheme leaves racial minority voters with “less opportunity than white voters to elect representatives of their choice.” In conducting this analysis, the Court said that courts could consider the several factors identified in the Senate Report that accompanied the 1982 amendments, sometimes called “the Senate factors.” These include considerations like “the history of voting-related discrimination in the” jurisdiction, “the extent to which voting in the” jurisdiction “is racially polarized,” the “extent to which minority group members bear the effects of past discrimination,” the “extent to which members of the minority group have been elected to public office,” and whether the “policy underlying” the contested voting scheme “is tenuous.”

The Court and lower courts have consistently applied the Gingles framework to vote-dilution cases, including cases challenging single-member districting schemes. The three-judge district court applied this framework in this case.

Against this backdrop, Alabama argues that HB 1 does not violate Section 2. It says that Section 2 of the VRA only requires that political processes are “equally open” to all voters, and that Section 2 only prohibits discrimination “on account of race.” According to the state, this “concept of equal openness is not measured simply by disparate impact or lack of proportionality to a statewide minority population.” Instead, “districts are ‘equally open’ when they resemble neutrally drawn districting plans, consistent with the State’s naturally occurring demographics and longstanding districting principles.”

Moreover, Alabama argues that the Gingles preconditions serve to protect these principles. According to the state, this means that any illustrative maps that plaintiffs provide in Section 2 cases to demonstrate that a state could create more majority-minority districts (as in this case) themselves must be drawn with race-neutral criteria. The state contends that race cannot predominate in drawing illustrative maps, or else “Gingles is a useless tool for determining whether race-conscious remedies are appropriate in the first place.” Put yet another way, Section 2 “operates as a prohibition against redistricting plans that discriminate ‘on account of race,’ not as an affirmative obligation for race-based redistricting to maximize or make proportional the number of majority-minority districts.” In practice, this means that Section 2 never requires a state to add a majority-minority district just because it could.

Applying these principles, Alabama argues that HB 1 does not violate Section 2, and that the plaintiffs’ illustrative maps only prove that. The state says that the plaintiffs’ own witnesses said that the state, using traditional districting criteria, could have drawn “millions of possible race-neutral plans” that, like HB 1, contained only one majority-minority district. At the same time, it claims that because the plaintiffs’ illustrative maps in this case “themselves discriminate in favor of one racial group,” the maps “shed no light on whether the State’s plan discriminates against that group.” Moreover, the state claims that the plaintiffs could only produce a map with a second majority-minority district by impermissibly “starting with a ‘nonnegotiable’ racial target and backfilling with other districting criteria after that target had been met.”

Finally, Alabama argues that if the district court properly applied Section 2, then Section 2 must be unconstitutional as applied to single-member districts. According to the state, that’s because Congress would have exceeded its authority in enacting Section 2 under the Fourteenth and Fifteenth Amendments if, as the state says the district court ruled, Section 2 requires racial discrimination in order to enforce its mandate against racial discrimination. Alabama contends that the Court “can avoid this constitutionally dubious outcome” by affirming that Section 2 requires only that states draw their districts neutrally.

The two sets of plaintiffs argue (in two separate briefs) that the district courts did not err in finding that HB 1 likely violates Section 2. They claim that HB 1 divides black voters in the Black Belt across several districts. They say that the state’s “racialized political system” prevents black voters from electing a candidate of their choice in those districts. They contend that this is exactly what Section 2 forbids.

The plaintiffs argue that Alabama is wrong in arguing otherwise. As to the state’s attacks on the plaintiffs’ illustrative maps, the plaintiffs say that they used these maps to satisfy the first Gingles precondition, and that the state attacks the illustrative maps based on districting criteria that are not supported by its own districting guidelines. And as to Alabama’s attacks on the district courts’ ultimate totality-of-the-circumstances conclusion, the plaintiffs contend that the state fails to challenge any particular finding. The plaintiffs assert that the state instead mischaracterizes the district courts’ ruling by claiming that the courts found a Section 2 violation because HB 1 lacks proportionality and by suggesting that the courts’ ruling “hinged on Plaintiffs’ satisfaction of the first precondition alone.”

The plaintiffs argue next that the Court should reject Alabama’s efforts to rewrite Section 2 and alter the time-tested Section 2 framework. The plaintiffs say that Gingles and its progeny are entitled to “enhanced” stare decisis protection, and that the state cannot overcome this. They claim that the state’s interpretation of Section 2 would reinstate the intent test that Congress specifically disavowed in the 1982 amendments. They assert that under Alabama’s approach, states could easily dodge Section 2 liability by providing any “race neutral” justifications, no matter how spurious, effectively rendering Section 2 meaningless. They contend that the state’s interpretation would only continue to submerge long-oppressed racial minority groups into districts where they will be outvoted by the majority. And they say that Alabama has not provided any good reason to alter or abandon the established Section 2 framework in the context of single-member districts.

Contrary to the state, the plaintiffs argue that the established Section 2 framework does not violate the Constitution. The plaintiffs point out that under the framework, plaintiffs (and not the state) must demonstrate that a racial minority group can constitute more than half of the voting-age population in a district. Because this requirement applies to plaintiffs (and not the state), there’s no constitutional violation. (The Fourteenth and Fifteenth Amendments only apply against state actors.) Moreover, the plaintiffs contend that any remedy for a Section 2 violation does not entail a “predetermined, ‘non-negotiable’ racial target.” Instead, a Section 2 remedy must only provide racial minority voters the opportunity to elect a candidate of their choice. The plaintiffs say that this requires at most “an awareness” of race, not racial predominance. Such “an awareness” does not violate the Constitution.

Finally, the plaintiffs argue Section 2 fits comfortably within Congress’s authority to enforce the Fourteenth and Fifteenth Amendments. They say that while Section 2 does not require plaintiffs to prove intent to discriminate by race, it does require them to “establish various indicia of a racially exclusionary political system.” The plaintiffs contend that Section 2 is thus closely tied to the antidiscrimination provisions in the Fourteenth and Fifteenth Amendments.

(The government weighed in on the side of the plaintiffs and offered substantially similar arguments.)


This is the Court’s third major case in recent years that tests the metes and bounds of the VRA. In the first two cases, the Court sharply limited the VRA. If the Court follows this trend, look for the Court to rule for Alabama, and to limit the application of Section 2 to redistricting plans. 

In the first case, Shelby County v. Holder, 570 U.S. 529 (2013), the Court held that Congress exceeded its authority under the Fourteenth Amendment when it set a coverage formula for states and jurisdictions that had to obtain permission from the federal government or a three-judge court before they made any changes to their election laws. (Congress designed this “preclearance” requirement to detect and halt putatively “neutral” changes in state and local laws that would lead to a retrogressive effect on the voting rights of racial minorities.) The ruling effectively eliminated the preclearance requirement from the VRA and allowed previously covered jurisdictions more easily to enact “neutral” voting restrictions that disparately impact racial minority voters.

In the second case, Brnovich v. Democratic National Committee, 141 S. Ct. 2321 (2021), the Court ruled that Arizona’s bans on ballot collection and out-of-precinct voting did not violate Section 2 of the VRA. In so ruling, the Court adopted a new approach to Section 2 claims in the context of voting practices (but not districting). This new approach sharply curtails Section 2’s impact and ability to remedy putatively “neutral” voting laws that disparately impact racial minority voters. 

In this third case, Alabama calls on the Court to significantly change, or even overturn, the long-applied Section 2 framework from Gingles. In particular, the state calls on the Court to focus more on discriminatory intent, and less on discriminatory impact, in judging Section 2 claims, and to limit Section 2 plaintiffs and courts in using racial considerations in order to address racial discrimination. Like the Court’s approaches in Shelby County and Brnovich, Alabama’s approach would sharply limit the reach of the VRA and make it substantially harder for plaintiffs to establish a violation. If the Court follows its trendline, look for this result.

In addition to the Court’s trendline, there’s another critical event that likely predicts an Alabama victory. Remember that the Court stayed the district court injunction. While the Court said nothing on the merits of the case, the stay alone suggests that the Court is likely to rule for Alabama. 

That said, there’s still the question of how the Court is likely to rule. On one end of the spectrum, the Court could simply rule that the district courts erred in applying the established Section 2 framework—that the lower courts misapplied the established law to the facts. In the middle, the Court could substantially alter, or even overturn, the established Section 2 framework and replace it with a new approach for all redistricting challenges. At the far end, the Court could rule Section 2 unconstitutional, because its prohibition on discriminatory impact exceeds Congress’s authority to enforce the Fourteenth and Fifteenth Amendments’ ban on discriminatory intent. Such a far-end ruling would effectively render the VRA toothless, and could have wide-ranging implications for antidiscrimination law well beyond voting rights.

Still, any result will almost surely limit Section 2’s reach in the context of redistricting. And along with Shelby County’s effective elimination of preclearance and Brnovich’s sharp limit on Section 2’s application to voting practices, these three cases could decimate the VRA.

Steven D. Schwinn

Professor of law at the University of Illinois Chicago School of Law

Steven D. Schwinn is a professor of law at the University of Illinois Chicago School of Law and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at 312.386.2865 or [email protected].

PREVIEW of United States Supreme Court Cases 50, no. 3 (November 28, 2022): 42–48. © 2022 American Bar Association 


For Appellants John H.Merrill, Alabama Secretary of State, et al.(Edmund Gerard LaCour Jr., 334.242.7300)

For Appellees Evan Milligan, et al.(Deuel Ross, 212.965.7712)

For Caster Respondents (Abha Khanna, 206.656.0177)


In Support of Appellants John H.Merrill, Alabama Secretary of State, et al.

  • Alabama Center for Law and Liberty (Matthew James Clark, 256.510.1828)
  • America First Legal (Christopher Ernest Mills, 843.606.0640)
  • American Legislative Exchange Council (Jonathon Paul Hauenschild, 703.373.0933)
  • Citizens United, et al. (Bradley Alan Benbrook, 916.447.4900)
  • Coastal Alabama Partnership (John Cowles Neiman Jr., 205.254.1228)
  • John Wahl, Chairman, Alabama State Republican Executive Committee (Albert Linch Jordan, 205.874.0305)
  • Lawyers Democracy Fund (Efrem M. Braden, 202.861.1711)
  • Louisiana, et al. (Elizabeth Baker Murrill, 225.326.6766)
  • National Republican Redistricting Trust (Jason Brett Torchinsky, 540.341.8808)
  • Project on Fair Representation (Jonathan Andrew Berry, 202.955.0620)
  • Public Interest Legal Foundation (Kaylan Lytle Phillips, 317.203.5599)
  • Republican National Committee (David Alan Warrington, 703.574.1206)
  • Senator John Braun, Leader of the Washington Senate Republican Caucus, et al. (Charles Robert Spies, 202.466.5964)
  • United States Representatives from Alabama (Christopher Ernest Mills, 843.606.0640)

In Support of Appellees Evan Milligan, et al.

  • Alabama Historians (Roy T. Englert Jr., 202.775.4503)
  • American Bar Association (Reginald M. Turner, 312.988.5000)
  • Bipartisan Group of Senators and Congressional Staff Member-Supporters of the 1982 Voting Rights Act Amendments and 2006 Voting Rights Act Reauthorization (Jeffrey Paul Justman, 612.766.7133)
  • Brennan Center for Justice (David A. O’Neil, 202.383.8000)
  • Campaign Legal Center (Mark Peter Gaber, 202.736.2200)
  • Central Alabama Fair Housing Center, et al. (Rebecca Jane Livengood, 202.728.1888)
  • Computational Redistricting Experts (Sam Hirsch, 202.637.6000)
  • Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)
  • District of Columbia (Caroline Sage Van Zile, 202.724.6609)
  • Lawyers’ Committee for Civil Rights Under Law, et al. (Jon M. Greenbaum, 202.662.8315)
  • Local Governments (Joseph Russell Palmore, 202.887.6940)
  • National Congress of American Indians (Jacqueline Diana De Leon, 303.447.8760)
  • Press Robinson, Edgar Cage, Dorothy Nairne, Alice Washington, Clee Earnest Lowe, Davante Lewis, Martha Davis, Ambrose Sims, NAACP Louisiana State Conference, and Power Coalition for Equity and Justice (Jonathan Hillel Hurwitz, 212.373.3254)
  • Professor Travis Crum (Demian Alexander Ordway, 646.837.5151)
  • Professors Jowei Chen, Christopher S. Elmendorf, Nicholas O. Stephanopoulos, and Christopher S. Warshaw (Ruth Merewyn Greenwood, 617.496.0222)
  • Representative Terri Sewell, et al. (John Paul Schnapper-Casteras, 202.630.3644)
  • Republican Former Governors (Kathleen Roberta Hartnett, 415.693.2000)
  • UCLA Social Scientists (Chad Wilson Dunn, 310.400.6019)
  • U. W. Clemon, Fred D. Gray, Henry Sanders, the Alabama Legislative Black Caucus, and Social Science Professors (Jeffrey T. Green, 202.736.8291)
  • United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)
  • Voting Rights Practitioners (Debo P. Adegbile, 212.295.6717)

In Support of Affirmance 

  • Southern Poverty Law Center, the League of Women Voters of Alabama, the League Of Women Voters of the United States, and Stand-Up Mobile (Noah Nehemiah Gillespie, 202.729.7483)

In Support of Neither Party 

  • Singleton Plaintiffs (James Uriah Blacksher, 205.612.3752)